Common Law Marriage: How to avoid being or getting married without your intent

Posted on Jan 15, 2018 6:00am PST

Plenty of people get married for reasons other than love. Money, security, maybe even a little baby about to be born are just a few of the reasons why people get married when eternal love is not the number one consideration. Marriages of necessity or convenience, I suppose you could call them. As you read these sentences and consider what we are discussing I bet you can think of a few people that you know that are involved in a marriage like this.

On the other end of the marriage spectrum are people who are married but don’t actually know it or don’t intend to be married at all. Common law marriage is known as an informal marriage for a reason. The formalities associated with a proposal, exchanging of vows, the wedding itself, etc. require forethought and planning. People that are common law married often times don’t even know that they are married until one or the other of them asserts that they are.

What if you find yourself in a situation where your roommate, girlfriend/boyfriend or other person in your life is suggesting that you and he or she are actually common law married? This designation carries with it real life consequences and responsibilities. The Law Office of Bryan Fagan is here to help walk you through the essentials when it comes to common law marriage today.

A breakdown of Common Law Marriage in Texas

As I alluded to earlier in this blog post Common Law Marriage is a marriage in which two people agree to be married, live together as a married couple and hold themselves out as being married to other people. This is all in spite of never going in front of a judge or preacher to be formally married and never having contacted a county clerk to get a marriage license. These are the qualifications for a common law marriage in Texas as set out in the Texas Family Code.

To start with, you and another person have to actually agree to be married. This can be done by an oral agreement or something in writing and must take place presently. It cannot be a “promise to get married when we both turn forty if neither of us is married yet”. Where the agreement to get married part of this equation can get tricky is that by proving the second and third elements listed above it is possible to have agreed to be married without ever having actually discussed it with your “spouse”.

Life circumstances can lead to a common law marriage

It would be much more difficult to unknowingly be in a common law marriage if every common law marriage began with either an oral discussion or written agreement to be married. Instead, Texas courts have ruled that by living together and holding yourselves out as married people, you can bypass this agreement to be married step.

If you live together with another person and a court believes that you have held yourself out as married to the general public it can be determined that you and this person were in fact common law married.

Living together as a married couple would be an important aspect to consider then. If you pay bills together, cook meals together, make decisions as a unit and go about your lives as a married couple might then you may meet this requirement. Consistently spending the night at a person’s home, having a sexual relationship, and generally meshing your life and theirs are all possible pieces of evidence that could be used to prove cohabitation.

Third we have the requirement that you and this person must have told other people that you were in fact married. Your actions by themselves can be enough for a court to determine that you are in fact common law married. Referring to one another as husband and wife is a basic way to satisfy this requirement, but it must be done to more than just your close friends and family.

If you involve this other person in your financial life- taking out a loan (like a mortgage) with them or listing him or her as a beneficiary on an insurance policy can satisfy this requirement as well, potentially.

When does a common law marriage actually begin and how can it end?

You may be wondering when a common law marriage can actually be said to have begun. Since you’re not going to the courthouse or chapel to exchange vows the beginning of a common law marriage can be a little more difficult to nail down. However, the law in Texas is that as soon as all three of the above requirements are met simultaneously then your common law marriage will have begun.

A common law marriage can end in the same way that a “traditional” marriage can- death, divorce or annulment. A key to understanding the end of a common law marriage is that a common law marriage carries with it the same consequences in terms of a division of your estate upon divorce. While you may think you are just in a dating or “roommate” relationship with another person, he or she may disagree and seek a formal divorce. A judge would consider evidence not only about the nature of your relationship with that person but potentially could be needed to divide up property should a common law marriage be found to be in place.

Questions about common law marriage in Texas? Contact the Law Office of Bryan Fagan

If you believe that you may be in a common law marriage and have questions about the consequences of that relationship please do not hesitate to contact the Law Office of Bryan Fagan today. Our office works with clients across southeast Texas and would be honored to speak to you about your situation. In Texas you must bring a lawsuit to prove an informal marriage within two years of the last time you and the alleged spouse lived together to avoid a presumption against the marriage so contact our licensed family lawattorneys today. A free of charge consultation is available six days a week.

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